P. Lenin Thevar v. R. Krishnamoorthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 24.01.2008 CORAMTHE HONOURABLE MR. JUSTICE S.J. MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M. VENUGOPAL W.A. NO.708 OF 2007 ANDW.P. NOS. 47678 OF 2006 & 17061 OF 20071. M. Kaliyamoorthy2. V. Chidambaram3. V. Ganesan4. Amsavalli5. N. Srinivasan6. R. Kannaiyan7. Murugaiya Thevar8. S. Venkatachalam ... Appellants in W.A. No.708/2007 and Petitioners in W.P.No.17061 of 2007P. Lenin Thevar... Petitioner in W.P. No.17678 of 2006- Vs - R. Krishnamoorthy... 1st respondent in W.A. No.708/2007 and 4th respondent in W.P. No.17061 of 2007Uma Maheswari ... 2nd respondent in W.A. No.708/2007& 5th respondent in W.P. No.17061/2007The CommissionerThiruthuraipoondi MunicipalityThiruthuraipoondiThiruvarur District. ... 3rd respondent in W.A.No.708/2007 and W.P. No.17061 of 2007 and 2nd respondent in W.P. No.47678/2006The Assistant Director of MunicipalityPanagal Building Thanjavur. ... 4th Respondents in W.A.No.708/2007The Assistant Divisional EngineerSub Divisional OfficeHighways DepartmentThiruthuraipoondiThiruvarur District.... 5th Respondent in W.A.No.708/2007& 4th respondent in W.P.No.47678/2006 https://hcservices.ecourts.gov.in/hcservices/ The Divisional EngineerHighways DepartmentThiruvarur,Thiruvarur District. .. 6th Respondent in W.A.No.708/2007& 3rd respondent in W.P.No.47678/2006The District CollectorThiruvarur. ... 7th respondent in W.A. No.708/2007, 2nd respondent in W.P. No.17061/2007 & 1st respondent in W.P. No.47678 of 2006The Superintendent of PoliceThiruvarur.The Superintending EngineerHighways DepartmentSubramaniapuramThiruchirapalli.... Respondents 8 & 10 in W.A. No.708/2007The Secretary to GovernmentHighways DepartmentFort St. George... 9th respondent in W.A. No.708/2007 Chennai – 600 009. The Additional Secretary to Government Highways Department,Government of Tamil Nadu,Fort St.George, Chennai-9. ..1st respondent in W.P. No.17061/2007W.A. No.708/2007 has been filed against the order dated 29.1.2007 inW.P. No.43979 of 2002. Presented to this Court under Article 226 of theconstitution of India to Writ of certiorarified mandamus to call for therecords of the first respondent the proceedings of the Municipal Council,Thiruthuraipoondi dated 20.05.2002, including the resolution number 139and to quash the same and direct the respondents 1 to 5 to remove theencroachment made by the respondents 7 to 15 in Survey No.158, mannargudiRoad,Thiruthuraipoondi within a time frame as fixed by this Court.W.P. No.47678/2006 has been filed, seeking to issue a writ ofmandamus, directing the respondents herein to take immediate steps toremove the encroachment in the interest of public in the main area nearthe old bus stand at Thiruthuraipoondi.W.P. No.17061 of 2007 has been filed, seeking to issue a writ ofcertiorari, to call for the records in respect of the impugned orderissued by the first respondent vide his proceedings in LetterNo.6433/HP2/07/1 dated 30.3.2007 and the consequential impugnedcommunication in Na.Ka.No.9522/2007/U-3 dated 10.4.2007 issued by thesecond respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Appellant & : Mr. N.R. Chandran, SC, for Petitioners Mr. R. Sureshkumar (W.A. No.708/2007 & W.P. No.17061/2007) Mr. S. Gajendran (W.P. No.47678/2006)For Respondents : Mr. R. Muthukumarasamy, SC, for Mr. S. Sathiyamoorthy for RR-1 & 2(Caveators) (W.A. No.708 of 2007) & for RR-4 & 5 (W.P. No.17061 of 2007) Mr. V. Subbarayan for R3 (W.A. No.708/2007 & W.P. No.17061/2007) & for R2 (W.P. No.47678/2006) Mr. D. Srinivasan, AGP for State COMMON JUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BY S.J. MUKHOPADHAYA, J.)Appellants in W.A. No.708/07 and respondents 7 to 15 to a publicinterest litigation, W.P. No.43979/02, have challenged the order dated 29thJan., 2007, passed by learned single Judge. The appellants are runningshops on road margin bearing survey No.158, Mannargudi Road,Thiruthuraipoondi, since 1967 and paying rent to the ThiruthuraipoondiMunicipality (hereinafter referred to as 'Municipality'). The MunicipalCouncil , by Resolution No.139, dated 20th May, 2002, having allowed theappellants/respondents to pay rent of those shops for the period 2000onwards, the aforesaid public interest litigation was preferred byR.Krishnamurthy, 1st respondent to the writ appeal. Prayer was made to setaside Resolution No.139 dated 20th May, 2002 and to remove theencroachments made by the appellants/respondents on survey No.158,Mannargudi Road, Thiruthuraipoondi.Learned single Judge, by impugned order dated 29th Jan., 2007, havingdirected the 16th respondent, Secretary to the Government, HighwaysDepartment, Chennai, to take appropriate action, the writ appeal has beenpreferred against the said order.2. Pursuant to the aforesaid order of this Court dated 29th Jan.,2007, the respondent, State of Tamil Nadu issued letter No.6433/HP2/07-1dated 30th March, 2007, from its Highways Department and directed theSuperintending Engineer (H), Trichy; the Collector, Thiruvarur District;the Commissioner, Thiruthuraipoondi Municipality and concerned DivisionalEngineer to take steps as per High Court's direction. In view of suchletter, a telephonic message No.9522/2007/F3 dated 10th April, 2007, wasissued by the District Collector, Thiruvarur, directing the DivisionalEngineer (Highways), Thiruvarur, Commissioner of Municipality,Thiruthuraipoondi and the Revenue Divisional Officer, Mannargudi as alsothe concerned Tahsildar to work together to remove the encroachments andto submit report. Aforesaid letter dated 30th March, 2007 and telephonic https://hcservices.ecourts.gov.in/hcservices/ message dated 10th April, 2007 have been challenged by the appellantsseparately in W.P. No.17061/07.3. A separate public interest litigation, W.P. No.47678/06 has beenfiled for removal of encroachment and similar prayer made as was made inthe earlier public interest litigation giving rise to the present appeal.In the above background, all the cases were heard together and disposed ofby this common judgment.4. According to the counsel for the appellants/writ petitioners ofW.P. No.17061/07, they are not encroachers and running their respectiveshops on the road margins since long on the basis of licence granted bymunicipality and on payment of rent. Their grievance is that, learnedsingle Judge passed the impugned order dated 29th Jan., 2007, withoutimpleading them as party and without hearing them. In fact, it has givenrise to the State Government's letter dated 30th March, 2007 and telephonicmessage dated 10th April, 2007, to evict them without verifying theirrecords. It is submitted that the action will amount to eviction of theappellants/petitioners in violation of rules of natural justice.Learned counsel appearing on behalf of the 1st respondent to theappeal, who is the petitioner of the earlier public interest litigation,submitted that survey No.158 is a public road known as "Mannargudi Road".It is a State Highway and maintained by the municipality and, thereby, themunicipality has no right to settle any portion of the road or its margin;such action will be also against public interest. Similar plea has beentaken by learned counsel appearing on behalf of the petitioner in W.P.No.47678/06.Learned counsel appearing on behalf of the municipality tried tojustify their action to run shops on road margins and referred to Section270 of the Tamil Nadu District Municipalities Act, 1920. It was submittedthat the municipality has power to allow persons to sell articles inpublic street by granting licence.5. In this connection, we may observe that Section 270 is a lawframed in the year 1920 when the principle of public interest was notdeliberated by the Courts. The power to grant licence to sell articles onthe street and the power to grant licence to establish a shop on the roador road margin being different, we are of the view that such ground cannotdefeat the public interest litigation. We are not expressing any opinionin regard to Section 270 of the Tamil Nadu District Municipalities Act,1920, in absence of any challenge, but one may doubt it as the saidprovision, if interpreted in the manner as submitted by the counsel forthe municipality, may run counter to public interest.6. We have heard the parties and noticed the rival contentions andalso order passed by learned single Judge.7. It has been accepted by the parties that no person can encroachover a public road or its margin, whether it is a national highway orState highway or municipal road. If there are encroachers, it is the dutyof the State and its authorities to evict such persons in accordance withlaw. However, if any person disputes the right and title or nature of https://hcservices.ecourts.gov.in/hcservices/ land, not being a public land or road or claim right on the basis of saledeed, licence, patta, etc., in such cases, it is only after givingopportunity to the parties, an order could be passed by the competentauthority for removal of encroachment. In case of disputed questions oftitle, one may move in suit and summary procedure cannot be followed.Similarly, if licence or patta issued giving right to occupy a land,it is open to the concerned authority to cancel such licence or pattaafter notice to the licencee/patta holder if it is found that the same isagainst public policy, such as licence granted or patta issued in regardto a road or road margin, which amounts to encroachment over public road.8. By impugned order dated 29th Jan., 2007, learned single Judge hasnot determined the question whether one or other individual, including theappellants/contesting respondents 7 to 15 are encroachers over road or itsmargin. The matter has been remitted to the 16th respondent, theSecretary, Highways Department, Chennai, to take appropriate action inaccordance with Section 36 of the Tamil Nadu District Municipalities Act,1920, with regard to the alleged encroachment in survey No.158 ofThiruthuraipoondi town and pass appropriate order giving opportunity tothe municipality.It appears that pursuant to the aforesaid order of this court, theState Government issued letter dated 30th March, 2007 and the otherauthority issued telephonic message dated 10th April, 2007. As the matterhas been remitted for determination by the Secretary, Highways Department,we are not inclined to interfere with the said order, but, with a view toavoid injustice, we feel that the direction given by learned single Judgerequires certain modification. We, accordingly modify the said order andissue the following directions :-(i) The Secretary, Department of Highways, Government of Tamil Nadu,Chennai, after notice to municipality, and if so necessary, on enquiry,will decide whether "Mannargudi Road" and its road margin in survey No.158on which alleged encroachment is stated to have been made is a "StateHighway" or a "municipal road". It will be open to the competentauthority of the State or municipality to bring on record any material toshow the status of the road, i.e., State Highway or municipal road. Suchdecision be taken within one month from the date of receipt/production ofa copy of this order.(ii) On such determination, if it is found that the road belongs tothe municipality, then the municipality will take steps u/s 36 of theTamil Nadu District Municipalities Act, 1920, for removal ofencroachments, if any. Such encroachment can be removed after hearing theparties, who allege to have encroached over the road or road margin,including those who may be running their shops on the basis of licence.In case it is found that encroachment is there over the road or roadmargin and/or such shops are situated over road or road margin, themunicipality, in public interest, after notice to the parties, may cancelthe licence and may take steps to rehabilitate those shopkeepers on somemunicipal land, which is not road or road margin, keeping in view thatthey were the licencee running their business since long. https://hcservices.ecourts.gov.in/hcservices/ (iii) If it is found that the road in question is a State Highway,the State authorities will remove the encroachments from the road,including the shops, if any, established without approval of the StateGovernment, after notice to the parties.The procedure aforesaid to be completed, determination to be made anda reasoned order to be passed by the State/municipal authorities(competent authority) within six months from the date ofreceipt/production of a copy of this order.9. The order passed by learned single Judge dated 29th Jan., 2007, inW.P. No.43979 /02 stands modified to the extent above. The GovernmentOrder dated 30th March, 2007 and telephonic message dated 10th April, 2007,may be acted upon only in the manner as ordered above. The parties willproduce a copy of this order before the Secretary, Highways Department,Government of Tamil Nadu, Chennai; Commissioner, ThiruthuraipoondiMunicipality; District Collector, Thiruvarur District; Secretary toMunicipal Administration Department, Government of Tamil Nadu and theconcerned Tahsildar, who are required to ensure compliance.The writ appeal as also the writ petitions stand disposed of with theaforesaid observations. But there shall be no order as to costs.GLNSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Commissioner Thiruthuraipoondi Municipality Thiruthuraipoondi Thiruvarur District. 2. The Assistant Director of Municipality Panagal Building Thanjavur.3. The Assistant Divisional Engineer Sub Divisional Office Highways Department Thiruthuraipoondi Thiruvarur District.4. The Divisional Engineer Highways Department Thiruvarur. https://hcservices.ecourts.gov.in/hcservices/

5. The District Collector Thiruvarur.6. The Superintendent of Police Thiruvarur.7. The Secretary to Government Highways Department Fort St. George Chennai – 600 009.8. The Superintending Engineer Highways Department Subramaniapuram Thiruchirapalli.+1 cc to Mr.S.Gajendran, Advocate Sr.No.3135.+2 ccs to Mr.S.Sathiyamoorthy, Advocate Sr.No.2972 & 2973.+1 cc to Mr.R.Suresh Kumar, Advocate Sr.No.3068.+1 cc to The Government Pleader Sr.No.3040.VC(CO)DCP/6.2 W.A. NO. 708 OF 2007 AND W.P. NOS. 47678/06 & 17061/07